On October 8, 2019, the United States Supreme Court heard oral arguments addressing whether current federal anti-discrimination law protects LGBTQ employees from employment discrimination. The Supreme Court’s decision is expected to resolve a current split among various Circuit Courts of Appeal concerning whether Title VII’s prohibition of employment discrimination “on the basis of… sex” extends to sexual orientation and gender identity.
Title VII of the Civil Rights Act of 1964 is one of the principal federal employment laws that makes it illegal for employers to discriminate against employees on the basis of sex, among other protected class characteristics such as race, national origin and religion. It also prohibits harassment and retaliation based on membership in any of the protected classes. Most private employers that employ 15 or more employees, as well as all state, local and federal government employers, are covered under Title VII.
Initially, courts interpreted Title VII’s prohibition against sex discrimination to mean that an employer could not favor one gender over the other. Gradually, the boundaries of sex discrimination under Title VII have expanded to include the entire spectrum of disparate treatment of men and women resulting from sex-based stereotypes, assumptions and/or gender nonconformity. For example, in 1989, the Supreme Court held in Price Waterhouse v. Hopkins that it is unlawful sex discrimination to make employment decisions that take gender into account by using stereotypes of how men or women are culturally presumed to appear or act.
Three cases currently awaiting decision by the Supreme Court may further expand the definition of sex discrimination. In these cases, the plaintiffs asserted that their employers violated their civil rights under Title VII by firing them because they were either gay or transgender. Two of the cases, Altitude Express v. Zarda from the Second Circuit and Bostock v. Clayton County from the Eleventh Circuit, which encompasses Georgia, address whether discrimination on the basis of sexual orientation is a form of discrimination “because of…sex”. The third case, R.G. and G.R. Harris Funeral Homes v. EEOC from the Sixth Circuit, addresses discrimination on the basis of gender identity and transgender status.
In Bostock and Zarda, the plaintiffs each alleged that they were fired from their jobs because of their sexual orientation. Subsequently, they brought lawsuits against their employers arguing that Title VII’s prohibition of discrimination on the basis of sex includes discrimination based on sexual orientation because such discrimination necessarily takes sex into account. The Eleventh Circuit rejected this argument in Bostock, holding that Title VII does not protect employees from discrimination on the basis of sexual orientation. The Second Circuit, however, came to the opposite conclusion in Zarda, asserting that Title VII protects employees from discrimination on the basis of sexual orientation in two ways.
First, the Second Circuit noted that Title VII’s prohibition on sex discrimination clearly applies to any employment practice in which sex is a motivating factor. Because sexual orientation is defined by one’s sex in relation to the sex of who one is attracted to, it is impossible for an employer to consider sexual orientation without considering the employee’s sex. Second, the court noted that under Price Waterhouse, sex discrimination can be based on assumptions or stereotypes about to whom members of a particular sex should be attracted. For example, the court further reasoned that when a man who is attracted to men is treated differently than a woman who is attracted to men, sex discrimination has occurred.
In the third case, R.G. & G.R. Harris Funeral Homes, the plaintiff was terminated shortly after notifying her employer that she intended to transition from male to female and would represent herself as a woman while at work. The Sixth Circuit ruled in favor of the plaintiff and held that Title VII’s protection against discrimination based on sex includes discrimination based on gender identity. The court held that, based on Price Waterhouse, an employer engages in unlawful sex discrimination by expecting either biologically male or biologically female employees to conform to certain gender stereotypes. The court reasoned that it is not possible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex. Further, the court concluded that discrimination “because of sex” inherently includes discrimination against employees because of a change in their sex.
The Supreme Court’s decisions in these cases will likely have wide-spread implications because Title VII protections apply to all employment-related decisions, including employee compensation and benefits. For example, the central issue in a case currently pending in an Alaska federal court is whether the state's policy of not providing health care coverage for gender reassignment surgery discriminates against transgender workers. The plaintiff argued that Title VII protects transgender employees and because of this, employee health plans that refuse to pay for an employee's sex-reassignment surgery violate Title VII as well.
Although there is no official timeline for the Supreme Court to issue a ruling, a decision is expected by Spring 2020. In the meantime, employers should be proactive in consulting legal counsel to better prepare for the possible expansion of protections. Under Title VII, illegal employment discrimination includes, but is not limited to, refusal to hire, termination, harassment, unequal salary and unfair treatment in the terms, conditions or privileges of employment. Employers should be prepared to revise company policies and procedures, employee handbooks and training programs to reflect a broader definition of discrimination and harassment.